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No. 06-14-00222-CR

IN THE 

COURT OF APPEALS 

FOR THE SIXTH SUPREME 

JUDICIAL DISTRICT OF TEXAS 

TEXARKANA 

TAMMY KAY TAYLOR, Appellant 

v.

THE STATE OF TEXAS, Appellee 

Appealed in Cause No. 1423993 

8

th Judicial District Court of Hopkins County, Texas 

APPELLEE’S BRIEF

 

ACCEPTED

06-14-00222-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

2/26/2015 2:05:46 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 2/26/2015 2:05:46 PM DEBBIE AUTREY Clerk
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 By:/s/ Nicholas C. Harrison

 Nicholas C. Harrison

Assistant District Attorney

 State Bar No 24062768

P.O. Box 882

Sulphur Springs, Texas 75483

(903) 885-0641
3

TABLE OF CONTENTS

TABLE OF CONTENTS 3

TABLE OF AUTHORITIES 4

SUMMARY OF THE ARGUMENT 5

ARGUMENT AND AUTHORITIES 5

STANDARD OF REVIEW 5

I. The trial court did not err in admitting an extraneous offense. 5

II. Any error in admitting the extraneous offense was harmless. 8

III. The trial court did not make a Hardesty inference finding. 9

IV. Even if the trial court made such a finding, it would not be error. 11

PRAYER FOR RELIEF 13

CERTIFICATE OF SERVICE 14
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TABLE OF AUTHORITIES

Cases

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997)...........................................5

Higginbotham v. State, 356 S.W.3d 584 (Tex.App. - Texarkana 2011)....................7

Johnson v. State, 967 S.W.2d 410 (Tex.Crim.App. 1998).........................................8

Morales v. State, 32 S.W.3d 862 (Tex.Crim.App. 2000)...........................................9

Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App. 1983)..........................................9

Pardee v. State, 2012 Tex. App. LEXIS 6823 (Tex.App. - Texarkana 2012)..........11

Jones v. State, 899 S.W.2d 25 (Tex.App. - Tyler 1995) ..........................................11

Rules

Texas Penal Code 31.03(c)(1); ..................................................................................6

Texas Rule of Evidence 404(b); ................................................................................7

Texas Rule of Appellate Procedure 44.2(b); .............................................................8
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SUMMARY OF THE ARGUMENT

During the bench trial, the court sitting as fact finder did not err in admitting 

testimony concerning an extraneous offense, since it was proven beyond a 

reasonable doubt. Even if it was error to admit the extraneous offense testimony, 

the error was harmless. The trial court did not make a Hardesty inference finding, 

but only considered the State’s arguments along with the evidence. Had the trial 

court made such a finding, it would not have been error anyway.

ARGUMENT AND AUTHORITIES

Applicant presents two issues for review: (1) Whether it was harmful error for the 

trial court to admit testimony of an extraneous offense and (2) Whether the trial 

court committed harmful error by making a “Hardesty inference” finding.

STANDARD OF REVIEW

Evidentiary rulings are reviewed under an abuse of discretion standard.

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).

I. During the bench trial, the court sitting as fact finder did not err 

in admitting testimony concerning an extraneous offense, since it 

was proven beyond a reasonable doubt.
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During its case-in-chief, the State admitted testimony pursuant to Texas 

Penal Code 31.03(c)(1). This provides that “evidence that the actor has previously 

participated in recent transactions other than, but similar to, that which the 

prosecution is based is admissible for the purpose of showing knowledge or intent 

and the issues of knowledge or intent are raised by the actor’s plea of not guilty.”

Specifically, the State called as a witness Mr. Rupinderjit Singh, the 

Appellant’s former employer. (R.R. Vol. III, pg. 182-191). Mr. Singh testified that 

he owned a Family Mart convenience store in Hopkins County, Texas, and he 

hired Appellant as a cashier before promoting her to store manager. Appellant 

worked for him during August 2013, and she was the only person besides Mr. 

Singh with access to his office. Mr. Singh testified that Appellant knew that he 

would be out of town on August 27, 2013, and he had been gone for four or five 

days before that date. On August 27, at approximately 4 a.m. Appellant entered 

Mr. Singh’s office and stole approximately $4000 in cash. She then failed to report 

for her usual morning shift and stopped taking Mr. Singh’s phone calls. At no point 

prior to the theft had Appellant failed to return Mr. Singh’s calls. 

The State acknowledges that Mr. Singh was not physically present in the 

store during Appellant’s theft, as of course was her plan. The admissibility of Mr. 

Singh’s testimony is based on a theft statute provision which operates much like 
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Texas Rule of Evidence 404(b): the prior act is not admissible to prove character, 

but to prove intent and modus operandi. In both cases, Appellant became employed 

by U.S. citizens of South Asian descent: Mr. Singh in one case and Mr. and Mrs. 

Patel in another case. In both cases, Appellant worked herself into a position of 

trust and access. In both cases, Appellant waited until her employer was away for 

an extended period of time. In both cases, Appellant then committed a theft. And in 

both cases, Appellant suddenly shut off all communication with her former 

employers.

Appellant cites Higginbotham v. State, 356 S.W.3d 584 (Texarkana 2011, 

pet. Ref’d). In that case, a witness testified to an extraneous offense committed by 

the defendant. Unlike this case, appellant in Higginbotham objected at the time of 

trial on the basis that the State had not proven the offense beyond a reasonable 

doubt. Additionally, the Court described the witness’s statements as conclusory 

and inconsistent. In this case, Appellant did not object at the time of the testimony. 

(R.R. Vol. III, pg. 182). Mr. Singh’s testimony was clear, unequivocal, and it 

comprehensively addressed each element of the offense of theft of property.

The trial court, as fact finder, could have reasonably found that the State

proved this extraneous offense beyond a reasonable doubt. Appellant complains 

that the trial court did not make an express fact finding on the theft from Mr. 
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Singh. (Appellant’s Brief at 8). No such finding is required under Texas law, and 

Appellant cites no authority in support of that argument.

II. Even if it was error to admit the extraneous offense testimony, the 

error was harmless.

Even though the Court found the admission of the extraneous offense to be 

error in Higginbotham, it was determined to be harmless. Id at 592. Error in 

admitting evidence concerning extraneous offenses is reviewed under the standard 

for non-constitutional error requiring an appellate court to disregard a nonconstitutional error that does not affect a criminal defendant’s substantial rights. 

TEX.R.APP. 44.2(b). Reversible error has not occurred if the appellate court, after 

examining the record as a whole, “has a fair assurance that the error did not 

influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d, 410.

(Tex. Crim. App. 1998).

The Texas Court of Criminal Appeals has instructed:

“In assessing the likelihood that the jury’s decision was adversely affected 

by the error, the appellate court should consider everything in the record, including 

any testimony or physical evidence admitted for the jury’s consideration, the 

nature of the evidence supporting the verdict, the character of the alleged error and 

how it might be considered in connection with other evidence in the case. The 
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reviewing court might also consider the jury instruction given by the trial judge, 

the State’s theory and any defensive theories, closing arguments, and even voir 

dire, if material to appellant’s claim.” Morales v. State, 32 S.W.3d 862.

(Tex.Crim.App. 2000).

In this case, the court acted as fact finder, and thus all the concerns

associated with misleading a jury are alleviated. Notably, Mr. Singh’s testimony 

consisted of 9 pages of the record out of 153 pages of the State’s case-in-chief and 

out of a 221 page record. (R.R. Vol. III pgs. 182-191). At no point during the 

State’s closing argument did it even mention the extraneous offense. In light of the 

overwhelming evidence of guilt, the admission of Mr. Singh’s testimony, if error, 

was harmless.

III. The trial court did not make a Hardesty inference finding, but 

only considered the State’s arguments along with the evidence.

The Hardesty inference is a legal device which may be utilized by the State 

during theft prosecutions. Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App. 1983). 

Once the elements of the inference are established, a fact finder may infer from 

those facts a defendant’s guilt of theft. The inference is not a presumption, and it 

may or may not be sufficient to sustain a conviction. If an actor is found in 
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possession of recently stolen property and offers no reasonable explanation for his 

or her possession at the time, a fact finder may infer that the actor stole it.

Appellant complains that the trial court erred by making a Hardesty

inference finding, and that the State failed to lay a proper predicate for the 

inference. The State acknowledges that it requested a Hardesty inference finding 

from the trial court, however, the trial court declined to make such a finding. 

Below is an excerpt from R.R. Vol. III, pgs. 191-192.

“MR. HARRISON: Your Honor, State has no further witnesses, no further 

exhibit evidence. We would – at this time, if we could take up the issue of the 

Hardesty inference? (State rests).

THE COURT: You’re excused, Mr. Singh.

THE WITNESS: Thank you, sir.

THE COURT: Did you provide this same –both the case – the Hardesty case 

and the section from the Texas Practice Guide – Texas Practice Series regarding 

the Hardesty inference to Mr. Ferguson?

MR. HARRISON: I did, Your Honor.

THE COURT: Now, you correct me if I’m wrong, but would this not just be 

part of your closing arguments?
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MR. HARRISON: Well, I believe it’s a legal device. I know that there’s no 

jury here. It’s not a presumption.

THE COURT: Right.

MR. HARRISON: But it is – it’s an inference that the Court can find –

THE COURT: Sure.

MR. HARRISON: -- which I think would help our case, but we could 

certainly just argue. That’s true.

THE COURT: What I’m going to do is just kind of understand that that’s 

going to be part of the State’s argument in support of their burden of proof. And so 

the State has rested their case in chief. Mr. Ferguson?”

IV. Had the trial court made such a finding, it would not have been 

error anyway.

Even if the trial court had made a finding that the State laid a sufficient 

predicate to avail itself of the Hardesty inference, such a finding would not have 

been error. Appellant cites Pardee v. State, 2012 Tex. App. LEXIS 6823, (Tex. 

App. – Texarkana 2012), which states “no inference of guilt can be raised where 

police found the stolen property in a place where others have an equal right and 

facility of access.” 
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To lay the predicate for the Hardesty inference, the State had to present 

evidence that Appellant was found in possession of recently stolen property and 

offered no reasonable explanation for her possession at the time. Mrs. Wanda 

Henderson testified for the State. (R.R. Vol. III, pgs. 120-153). She stated that 

Appellant and Appellant’s husband arrived at Henderson’s place of residence to 

unload luggage and personal property. Appellant and her husband used a pickup 

truck and the process took two days. 

Mrs. Henderson testified that she observed Appellant and her husband 

carrying multiple, “nice” looking suitcases. (R.R. Vol. III, pg. 127). Mrs. 

Henderson asked Appellant where they got the suitcases, and Appellant said she 

got them from Goodwill for $1.50 each. In court, Mrs. Henderson viewed 

photographs of stolen property seized from the residence and identified the 

suitcases in the photographs as the same ones Appellant and her husband were 

carrying. (State’s Exhibits 2-7). The Victim, Mr. Jitendra Patel, earlier viewed the 

same photographs and identified the suitcases as being the very same which were 

stolen from him. (R.R. Vol. III pgs. 49-54).

The trial court, as fact finder, could have reasonably found that Appellant, 

either individually or under the law of parties with her husband, was in possession 

of recently stolen suitcases and that when she was asked about it by Mrs. 
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Henderson she gave an unreasonable explanation in the form of her $1.50 

Goodwill story. Appellant’s argument that Mr. Ron Hanson and Mrs. Wanda 

Henderson had an equal right of access to the room where the stolen property was 

eventually stored by Appellant misses the point. Mrs. Henderson testified that she 

saw Appellant and her husband with the stolen property physically in their hands 

as they moved it into the house. Joint possession of stolen property by multiple 

defendants is not a bar to the Hardesty inference. Jones v. State, 899 S.W.2d 25. 

(Tex. App. – Tyler 1995). In Jones, the court distinguishes between a case in which 

the stolen property was found, not on the accused’s person, but in a remote 

location –a common attic – to which others might have had access. In Jones, 

however, the stolen property was found with him, in plain sight, though others 

were present.

PRAYER FOR RELIEF

The State requests that this Court AFFIRM Appellant’s conviction by the trial 

court.

 By:/s/ Nicholas C. Harrison

 Nicholas C. Harrison

Assistant District Attorney

 State Bar No 24062768

P.O. Box 882
14

Sulphur Springs, Texas 75483

(903) 885-0641

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing 

instrument was forwarded to counsel for Appellant, Wade Forsman, on this the 26

th

day of February, 2015.

 By:/s/ Nicholas C. Harrison

 Nicholas C. Harrison

Assistant District Attorney

CERTIFICATE OF WORD COUNT

I certify that this document contains 1,829 words according to the counting 

tool in the program used to generate this document.

 By:/s/ Nicholas C. Harrison

 Nicholas C. Harrison

Assistant District Attorney